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Case Update

The Supreme Court takes on oral argument in two of the same-sex marriage cases this week.  On tap for Tuesday is Perry v. Hollingsworth, which concerns Proposition 8, the California referendum which narrowly reversed that state's supreme court decision declaring unconstitutional the state's ban on the practice.  Coming up on Wednesday is U.S. v. Windsor, which concerns the section of DOMA (the Defense of Marriage Act) which prohibits receipt of any Federal benefits to other than heterosexual married couples.  Both cases are scheduled for two hours of argument, twice the normal time.

It's hard to overstate the sea change that this issue has undergone.  Three presidential elections ago, George Bush's re-election was at least partially due to the conservatives in thirteen states who turned out to vote for amendments to their state's constitutions banning gay marriage.  At that time, the public felt that gay marriage should be illegal, by a 58 to 36 percent margin.  In eight years, that picture has turned upside down:  a Washington Post/ABC News poll last week showed gay marriage now being support 58-36.  The turnaround on the issue in the Republican party - hardly any Republican figure of consequence criticized Ohio GOP Sen. Rob Portman's reversal of his position, and even conservative figures were relatively muted - is driven by demographics; while a majority of those over 65 still oppose gay marriage, among those between 18 and 29, support is overwhelming, hitting 81% in the poll.

Regardless of your feelings on the issue, we're approaching one of those decisions the Supreme Court makes a couple of times in a generation, decisions that dramatically alter or define who we are.  Most of the people who read this read it for the criminal law analysis, but if you're interested in a quick-and-dirty rundown of what the issues in Perry and Windsor are, I'll have something on that on Wednesday.

Down in Columbus, there was a Supreme Court decision on a criminal case, in State v. Darmond.  I wrote about the case when the 8th District ruled on it, and again about the oral argument before the Supreme Court.  The short version is that Darmond was prosecuted for receiving a shipment of drugs, and it came out during his trial that there were five other packages interdicted at the same time, all of the same size, coming from the same area, and containing similar packaging and handwriting.  The judge declared a mistrial and dismissed the case with prejudice, even though everybody agreed that the State's failure to disclose the information was inadvertent, and even though nobody had determined whether the evidence regarding the other five packages was exculpatory, or even relevant, to Darmond's case.

It was clear to me after watching the oral argument that a reversal was coming; the only question in my mind was how broad the court's ruling was going to be.  Pretty broad, it turns out:  the syllabus clearly states that a court confronted with a discovery violation should impose "the least severe sanction consistent with the purpose of the rules of discovery," and that applies regardless of whether the violation is committed by the State or the defense. 

Let's take a look at some of the more interesting/important decisions in the courts of appeals...

Two good opinions on search issues, the first from the 2nd District in State v. Boyd on protective sweeps.  The police had responded to a domestic disturbance call, were met by the alleged victim, who stated that her husband had a gun, and her nephew was still inside the apartment.  The nephew emerged shortly thereafter, and so did the defendant.  The police conducted a protective sweep to determine whether anyone else was inside the apartment, and found the gun.  The court reversed the denial of the motion to suppress.  The State commonly argues that the police have a right to conduct a protective sweep to determine whether anyone else is present, but the panel places the proper limitation on that:  "not knowing whether anyone else is there is an insufficient pretext because the need for protection necessarily implies that another person or persons are there. . . Absent any reason to believe that other persons may be inside, officers must obtain a warrant before they conduct a search of a defendant's house after a defendant's arrest."  The second is the 6th District's decision in State v. Daniels, tossing the result of an investigatory stop, which was based on a confidential informant's tip.  The court finds that since the informant had never worked with the police before, was from the "criminal milieu," and police made no effort to corroborate the information he'd given them, his reliability hadn't been shown, and the police couldn't properly conduct a stop based solely upon his information. 

Well, we'll throw this in, too.  If you're doing an appeal where you're struggling to come up with assignments of error, take heart from the example set in the 2nd District's decision in State v. Parson.  Parson raises three assignments of error from his conviction and 18-to-life sentence for murder:  weight of the evidence, sufficiency of the evidence, and that the trial court erred by not telling him at sentencing that he could be ordered to perform community service if he fails to pay court costs.

Just a misunderstanding.  The Lexis summary from the 12th District's decision in State v. Barnette:

Defendant's conviction for murder was affirmed; based upon his testimony alone, the jury could have found that he created the situation giving rise to an affray, negating a claim of self-defense, by attempting to take the victim's television without specific confirmation that the victim agreed to trade the television for cocaine. 

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